Roman Law

1. General Introduction
   1. Pre-Roman Forms
      1. God given or divinely inspired.
      2. Traditional rules; customs of ancestors; the "ancestral constitution"
      3. Conventions devised by humans for benefit of humans (Homer, Iliad 6).
   2. Intellectual Revolution in Greece
      1. Universe is a natural whole with unchanging ways of its own, ways which humans can come to know;
      2. Conventions a major problem...societies vary, methods of burial (eat or burn).
      3. It was evident to Greeks that Gods do not even punish violators of their own laws (a perjurer); moreover, expediency and justice are often in conflict.
      4. Nonetheless, the statesman recognizes, as Thucydides points out, the consequences of the breakdown of law and tries to enforce it even if the law is sometimes unjust. It is then rational to obey the laws, for without it there is chaos (Plato, Crito).
      5. The problem: it may be rational to obey the laws, but it is clear that not all laws are rational.
2. Roman Law -its general significance. Generally acknowledged as one of the most important developments of ancient world; often the least studied. In reference to former, why?
   1. It is a systematic, consistent and all-encompassing legal structure
   2. It transcended its cultural idiosyncrasies.
3. Divisions
   1. Ius => Justice:
      1. The procedural means to establish domestic peace
      2. A set of principles devised to make possible a just / acceptable solution to problems posed by the clash of conflicting interests (...in order to form a more perfect union)
   2. Administrative or constitutional law: The powers and responsibilities of magistrates, of citizens and of the state. Major Roman contribution
      1. Checks and balances,
      2. Reflection on the role of law as a product of consensual government or of the sovereign; princeps super legibus, imperium maius; prince as source of law.
      3. In general Roman law, in terms of penalties, became more humane than any other system.
4. In sum: Roman law succeeded for three reasons:
   1. It does not have a conception of end-state justice, a vision of what the social order should be; it is rather concerned to define procedures which increase the probability of a just outcome
   2. It transcends national idiosyncrasies of legal systems by articulating what is just for all humanity. The principles and procedures are constantly tested against individual events and reformulated when necessary.
   3. Consider the alternative...

Many of Rome's subjects were well aware of the advantages of being judged by Roman law, and adopted Roman culture in order to participate in the legal system. Among them: the Apostle Paul

Why was Roman law so attractive to so many over such a long time? Here are some examples of Roman judicial principles. Note Roman Law is a factor in Romanization.

Fundamentals:

• JUSTICE is the constant and perpetual wish to render every one his due.
• The maxims of law are these: to live honesty, to hurt no one, to give every one his due.
• Marcus Tullius Cicero (106-43 B.C.) asserted the principles underlying a rule of law. If the fortunes of all cannot be equal, if the mental capacities of all cannot be the same, at least the legal rights of all those who are citizens of the same state ought to be equal.

Some general rules of Roman law / procedures:

• Laws are not laid down with reference to individuals but for general application.
• That which is faulty in the beginning cannot become valid with the passage of time.
• In cases of doubt the more liberal interpretation should always be preferred.
• Anything not permitted the defendant out not be allowed the plaintiff....It is not the Roman custom to condemn any man before the accused meets his accusers face to face and has an opportunity to defend himself against the charge.
• Not cohabitation, but consent makes a marriage.
• Nothing is so contrary to consent as force and fear, to approve which is contrary to morality.
• Our ancestors established the rule that all women, because of their weakness of intellect, should be under the power of guardians.
• The guilt or punishment of a father can impose no stigma upon the son; no one is made the inheritor of guilt of another.
• The burden of proof is on the party affirming, not on the party denying.
• It is understood that no one is a competent witness in his own case.
• It is right under natural law that no one should increase his wealth through harm or injury to another.
• No one is to be convicted on suspicion alone, it is better for the crime of a guilty person to be left unpunished than for an innocent to be condemned.
• An adjudicated matter is accepted as truth.

Various elements:

• Freedom (libertas=liberty) is the natural power of doing what we each please, unless prevented by force or by law.
• Neither statutes nor decrees can be drafted so as to comprehend every case that ever arises, but it is enough if they encompass such things as happen most of the time. Consequently, more precise provision has to be made either by interpretation or by a decree.